DHS Enhances Optional Practical Training Program in STEM Fields

Last week the US Department of Homeland Security (DHS) published a final rule to strengthen and enhance the Optional Practical Training (OPT) program for international students in science, technology, engineering, and mathematics (STEM) fields, allowing students from accredited schools the option to work in the US for up to three years after graduation. The final rule replaces the existing 2008 interim final rule, and amends the current regulations at 8 C.F.R. parts 214 and 274a, regarding OPT for F-1 nonimmigrant students who have completed a STEM degree. The rule, which received more than 50,000 comments, the most in DHS history, will officially go into effect Tuesday, May 10, 2016.

“The new rule for STEM OPT will allow international students with qualifying degrees to extend the time they participate in practical training, while at the same time strengthening oversight and adding new features to the program,” Lou Farrell, director of the Student and Exchange Visitor Program (SEVP) said in the press release.

The final rule, part of Obama’s executive action proposals, increases the STEM OPT extension from the current seventeen months to twenty-four months, and also includes the following enhancements and protections:

• Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP may apply for a STEM OPT extension.

• Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.

• Participating students can use a previously-earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.

• Employers participating in STEM OPT must incorporate a formal training program that includes concrete learning objectives with proper oversight.

• Employers and students must report material changes in their training program.

• To guard against adverse effects on U.S. workers, terms and conditions of a student’s training opportunity – such as duties, hours, and compensation – must be on par with U.S. workers in similar positions in the same geographic area of employment. Additionally, the student must not replace a full-time, part-time, temporary or permanent U.S. worker.

• Students must work a minimum of 20 hours per week per employer to qualify.

• Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.

• All STEM OPT employers must participate in DHS’ E-Verify program.

As BuzzFeed points out, the new regulation is meant to attract high-demand tech and engineering talent to the US, and is beneficial for not only foreign students in STEM fields after graduation but also the American universities that recruit them. Since the vast majority of foreign students pay full tuition, without relying on institutional scholarships or even federal student loans, foreign students are important sources of revenue for many American colleges. The influx of foreign students in the US last year was at the highest growth rate in thirty-five years.

“This extension is absolutely going to help colleges in the competition for the limited pool of international students [that want] a top-flight education in an advanced industrial economy,” Bill Stock, the incoming president of the American Immigration Lawyers Association (AILA), said in BuzzFeed.

“As a kid, you have this craze of going to the U.S. to study,” Sapan Patel, an Indian student who graduated in 2012 with a master’s degree from NYU’s Tandon School of Engineering, told BuzzFeed. “But the worry and stress of getting a job in the U.S., to have that hanging over your head, that scares you.” Because of the uncertain and difficult visa process, Patel said, “some of my friends might decide to go to Canada, where getting a work permit and becoming a citizen is much easier, or to Australia.”

Along with the rule’s official publication, the Student and Exchange Visitor Program (SEVP), which monitors international students and also certifies schools and programs, launched a STEM OPT Hub on DHS’ Study in the States. This hub includes resources for students, designated school officials, and employers.

The American Bazaar: "F1 visa students may be allowed to work in the US for 6 years after February 12, 2016"

A District of Columbia judge recently ruled that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 science, technology, engineering, and mathematics (STEM) students Optional Practical Training (OPT) extensions for seventeen months beyond the normal twelve months of OPT. Meanwhile, in an unrelated move, as part of President Obama’s executive actions the DHS has proposed regulations that would potentially allow STEM students to stay in the US for a total of six years.

The ruling on the seventeen-month STEM extensions by US District Court Judge Ellen Huvelle was partially in favor of the Washington Alliance of Technology Workers, who had pursed a case against F-1 STEM students to reduce their STEM extension to twelve months from seventeen, arguing that the STEM OPT extensions generated unfair competition by creating a cheaper category of workers. Judge Huvelle ruled that the DHS must vacate the rule since it did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would create a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, Judge Huvelle imposed a six-month stay until February 12, 2016, a move that should allow DHS to correct and implement the necessary public notice and comment.

In the end, this ruling may not have much impact because of the White House and DHS’s plans to expand and extend the OPT program for students in STEM fields. While the White House or DHS have not released further information about their plans, a letter from earlier this summer from Senator Charles Grassley, chair of the Senate Judiciary Committee, expressing concerns about the DHS plans, arguably reveals the proposed STEM changes.

Based on their briefing with Grassley, the DHS may be proposing regulations that would lengthen the OPT STEM extension period from seventeen to twenty-four months and allow students to take advantage of the STEM extension at two different times in their academic careers instead of only once, potentially “for a total of up to six years of postgraduation employment in student status[.]” STEM students could potentially be eligible for three years of OPT after undergraduate studies in a STEM field and three additional years after postgraduate studies in a STEM field.

Grassley, in his June letter to DHS Secretary Jeh Johnson, said that the proposed change to OPT STEM would permit “foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).”

"The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the department was not adequately overseeing it,” Grassley writes.

A spokesperson for Homeland Security's Immigration and Customs Enforcement division said in a statement in Inside Higher Ed that it could not elaborate on its OPT plans. “ICE is in the midst of drafting proposed rules for notice and public comment regarding foreign students with degrees in STEM fields from U.S. universities. Due to rule-making requirements, we cannot discuss the content of that proposed rule at this time,” the statement said.

Extending the OPT period for STEM students would be a welcome move within the international student community, the technology and science industry which employs many STEM workers, and among immigration practitioners, as the extended time would allow more opportunity to file H-1B petitions when the cap has been reached. At this point, however, we can only wait and see what if any changes will be enacted.

UPDATE DECEMBER 3, 2015: The US government has received nearly 35,000 comments on its plan to extend the OPT for STEM students from twenty-nine months to thirty-six months. The comments period closed last month. As was true with the initial ones, the majority of comments received support extending the program, which is not surprising given that as of September this year over 34,000 students were in the United States on a STEM OPT extension, many of whom would be forced to leave if the US government doesn't continue to bring the program into compliance with the law.